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Judicial Activism and Fourteenth Amendment Privacy Claims: The Allure of Originalism and the Unappreciated Promise of Constrained Nonoriginalism

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to control the Supreme Court's discretion. Conversely, some forms of nonoriginalist interpretation - in particular, those that rely on objective determinations of traditional or contemporary American societal values - may constrain the Court in meaningful ways. Relatedly, originalism may frustrate majoritarian self-government no less than these competing nonoriginalist methodologies, which, indeed, can be seen as relatively inoffensive to majoritarian values. If I am correct, critics of judicial activism might wish to reconsider their typical stance, that of embracing originalism and rejecting nonoriginalism as categorically illegitimate.

This essay is part of a symposium addressing "Judicial Activism: Same-Sex Marriage and the Aftermath of Proposition 8."